CARDOZO LAW REVIEW
2009controversy. But in making his argument that the UnitedStates Con
stitution created a ―secular‖ nation, that the text
―no reference whatsoever to God,‖ Professor Stone has
simply ignored the actual text of the Constitution he seeks toexplain.
The Oaths and Affirmations Clause
. Nor is this the onlysuch clause in the Constitution that makes some (albeitindirect) reference to God. The Article VI Oaths or Affirmations Clause mandated that all future federal andstate legislators and certain officers take an oath oraffirmation to support the Constitution.
What is thedifference between an oath and affirmation? The consensusview
and as far as I know the universal view
is that the
former is taken in God’s name, but the latter is not.
Thepurpose of the clause
according to the standard narrative
— was to permit Quakers and others having ―a religious or other
conscientious objection to oath-
taking‖ to also hold publicoffice. The purpose is one of ―inclusiveness and tolerance,‖
but it is also a textual reference to God in our public charter
albeit an indirect one.
The Sundays Excepted Clause
. Another clause that mightinterest us is the Sundays Excepted Clause, which provides:
―If any Bill shall not be returned by the President within ten
) after it shall have been presented tohim, the Same shall be a Law . . .
Does this clauseestablish any specific or named religion? No. Does itestablish a particular church? No. But if the intent of the
Founders or Ratifiers had been ―to create‖ no more and no lessthan ―a secular state,‖
then ought not Professor Stone tell uswhy this clause was included in the Constitution, and therebyentrenched against mundane democratic action? One wonderswhat purpose or purposes Professor Stone believes this clausewas meant to serve.
The Religious Test Clause
. Additionally, I note thatProfessor Stone wrote that the Religious Test Clause prohibits
―the use of any religious test for holding office.‖ I do not mean
to quibble, but his position is not quite right
or, at the veryleast, his position is not the only possible understanding of the
. art. VI, cl. 3 (―Oath or Affirmation‖);
see also id.
art. I, § 3, cl. 6(mandat
ing that Senators adjudicate impeachments ―on Oath or Affirmation‖);
art. II, § 1, cl. 8 (mandating that the President
―swear (or affirm)‖ to his ―Oath or Affirmation‖).
, 67 C.J.S.
Oaths and Affirmations
. art. I, § 7, cl. 2 (emphasis added).
note 1, at 5.